Departments Judges' Corner
| Publication year | 2009 |
| Pages | 49 |
2009, January, Pg. 49. Departments Judges' Corner
January 2009
Vol. 38, No. 1 [Page 49]
The Obligation of Attorneys to be Civil on Appeal
Judges' Corner is published quarterly to provide information Colorado judges would like to disseminate to attorneys. If you would like to suggest topics or write an article for this Department, please e-mail Coorindating Editor Hon. Alan Loeb, Colorado Court of Appeals Judge, at alan.loeb@judicial.state.co.us.
About the Author
Steven L. Bernard is a judge on the Colorado Court of Appeals. He has been on the Bench since 2006-steven.bernard@judicial.state.co.us.
"the most unkindest cut of all"(fn1)-William Shakespeare, Julius Caesaract 3, scene 2
At one time or another, we all have said things we later regret. However, the apparent willingness to give in to anger, or to use insult as a calculated tactic in legal writing or in oral argument, is too common to be merely a product of a single bad moment, produced by haste, regretted at leisure. In legal writing in particular, which should be the product of a thoughtful process, demeaning or disrespectful comments appear to be more deliberate than impulsive.
Our profession can be perceived as institutionally rude.(fn2) Some members of the public think that, when hiring a lawyer, they want one who is nasty, because they perceive rude attorneys as being more effective.
It may be that law . . . seem[s] so dismally rude because [its] principle ethic is merely one of victory, an ethic materially enriching and emotionally satisfying, but morally unimportant. If lawyers are paid to be rude . . . and their incivility is linked to the fact that they are also paid to win, we should scarcely be surprised that professional athletes find it comfortable to brawl with fans, spit on umpires, take bites out of ears, and, in one unfortunate case nicknamed "Assassin," specialize in injuring fellow football players. After all, athletes want to win, too.(fn3)
This is not a perception that would make our mothers proud.
Some readers of this article will ask the fair question, "Hasn't it always been this way?" The answer, based on the results of an extensive study issued in 1992,(fn4) appears to be that, although there always have been instances of incivility, they are decidedly more common in recent years than they were twenty years ago.(fn5) Sadly, this rise in bad manners has confirmed the public's perception that attorneys are rude.
There appear to be several reasons for this decline in good manners. Among them are the growth in the number of attorneys, which increasingly leads to an impersonal bar; the expectation of clients that lawyers will win by hook or by crook, without regard to the responsibility of attorneys to exercise their independent judgment; and the stress of balancing the imperative of gaining and keeping clients with billing "enough" hours and with having a life away from work.(fn6) The increasing diversity of the Bar also may play a role. The entry of more women and minorities into the profession has been met with resistance by a few, resulting in increased incidences of intolerance, such as gender bias.(fn7) Increased competition among lawyers for clients and an emphasis on advertising(fn8) may create an antagonistic climate among practitioners that may lead to rudeness. Diminished opportunities for mentoring(fn9) reduce the opportunities for new attorneys to gain thoughtful and constructive guidance.
The purpose of this article is to remind lawyers that they have an obligation to be civil on appeal, just as they must be civil before and during trial. There are, of course, important reasons grounded in public policy and legal ethics for living up to this obligation. There also is a practical reason: incivility is counterproductive.
Appellate lawyers who resort to invective do their clients no good and put themselves at risk of disciplinary proceedings or other sanctions. Their reputations also will suffer among the very judges they need for relief in future cases. Incivility in appellate practice is not only bad advocacy; it is also bad for career development.(fn10)
Professional Civility
My intention is not to contend that judges are or should be immune from any criticism.(fn11) Judges can be rude, too, and we must be persistently on guard to avoid such improper behavior.(fn12) Rather, I wish to address bad practices in briefing and oral argument that I think demean our profession and interfere with the just adjudication of controversies.
Defining Civility
I begin by presenting one definition of civility:
Although some attorneys view the practice of law in stark, almost apocalyptic terms-using words and phrases such as "battleground," "war," and "killing" the other side-law is a profession Professions have rules of behavior; professions recognize that winning is not everything; professions can and do expect the members they license to act as examples to the public, to their peers, and to members just entering the profession. U.S Supreme Court Justice Clarence Thomas pointed outCivility is more than surface politeness; it is an approach that seeks to diminish rancor, to reconcile, to be open to nonlitigious resolution. In short, it is an approach that modifies the antagonisms and aggressiveness of an adversarial society and seeks a more civilized condition.(fn13)
Civility then is the natural functioning of a legal profession in which we are all servants of that higher, nobler master, the Constitution and the law. The lawyer on the other side, or the judge, is not the enemy, but a fellow...
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